ROYAL COMMISSIONS
Historical Background
3.1 Royal Commissions are part of the executive arm of government. They are appointed by governments to conduct inquiries, obtain information and report thereon.1 Royal Commissions are appointed by the Commonwealth Government and by State Governments. All the States and the Commonwealth have legislation which confers specific powers upon Royal Commissions;2 however, Commissions may be appointed not only in conformity with statute but also by virtue of the prerogative power of the Crown.3
3.2 Royal Commissions were used as long ago as the 11th century when William the Conqueror established an inquiry which resulted in the Domesday Book of 1086.4 Although there was a decline in the use of Royal Commissions in the 15th century, Royal Commissions became a regular feature of government under the Tudors and the Stuarts. Cartwright observes that the 17th and 18th centuries were a period of relative unpopularity for Royal Commissions because of their extra-legal status and procedures.5
3.3 However, by the early 19th century Royal Commissions were being appointed in Britain at the rate of about one each year. In 1859, 13 Royal Commissions were appointed.6 According to Cartwright, there were several reasons for this revival With the continued passing of power from the Crown to the Parliament, much of the unpopularity surrounding Royal Commissions diminished. Moreover, the coming of the Industrial Revolution and its associated social and economic problems seemed suited to Royal Commissions and the type of investigation they could conduct.7
3.4 In Australia, research on the numbers of Royal Commissions appointed by the Commonwealth and State Governments has been undertaken by D.H. Borchardt.8 During the period 1855-1960, there were 959 Royal Commissions, Select Committees of Parliament and Boards of Inquiry established in New South Wales.9 For the period 1900-1960, 370 Royal Commissions, Select Committees and Boards of Inquiry were established by the Commonwealth Government.10
Powers of Royal Commissions
3.5 In Chapter 2 we discussed the principle that justice must, subject to limited exceptions, be administered in public. Royal Commissions exercise an investigatory or inquisitorial function.11 They do not exercise a judicial function in the sense of determining rights between parties, and are therefore not governed by the same principle. The New South Wales Royal Commissions Act, 1923 is silent in relation to the power of a Commission to exclude members of the public and the news media from proceedings, although the Commonwealth Act states that a Royal Commission has general power to order that evidence may be taken in private.12 Similarly, the New South Wales Act does not confer power on a Royal Commission to order that evidence be withheld from publication while the Commonwealth legislation provides that a Commission may direct that any evidence given before it “shall not be published or shall not be published except in such manner, and to such persons, as the Commission specifies.”13
3.6 Despite the lack of a statutory basis upon which to hold proceedings in camera, it is well established that a Royal Commission has a discretion whether or not to exclude the public. Thus, it was stated by the New South Wales Supreme Court in relation to the Royal Commissions Act:
“... it is for the person conducting the inquiry to decide whether the inquiry should be open to the public or not In this State, Royal Commissions have usually been conducted as public inquiries, subject to there being some occasions when for reasons usually of public policy, part of the proceedings have been conducted in camera.”14
Hallett states that the policy behind allowing the proceedings of Royal Commissions to be open is that
“Publicity is regarded as of fundamental importance to the success of an inquiry as a means of restoring public confidence, and as a means of independent scrutiny, into those areas of government administration where a problem has arisen.”15
3.7 Royal Commissions, like courts, have inherent power to regulate their own proceedings and to determine the manner in which the inquiry is to be conducted.16 There is no statutory basis for this power in the New South Wales Act, although in some other States, the power of Royal Commissions to regulate their own proceedings is contained in legislation For example, in South Australia, section 7 of the Royal Commissions Act 1917 (S.A.) provides that Royal Commissioners:
“... in the exercise of any of their functions or powers, shall not be bound by the rules or practice of any court or tribunal as to procedure or evidence, but may conduct their proceedings and inform their minds on any matter in such manner as they think proper.”17
The High Court has stated with respect to Royal Commissions appointed by the Commonwealth Government that the manner of the conduct of their inquiries “is entirely unfettered, either by statute or by executive direction”.18
3.8 Clearly, a body that has unfettered power to control its own proceedings, including a Royal Commission may make an order that a sound recorder not be used to record the proceedings. This issue was addressed by the Ontario High Court when considering a ruling of a School Board that prohibited the use of sound recorders during meetings.19 The School Board had statutory power to regulate its own proceedings and the public had a statutory right to attend meetings of the Board, unlike Royal Commissions which as we have seem have (in the absence of specific provision to the contrary in their governing statutes) a discretion whether or not to exclude the public. The Board made a ruling:
“That, at meetings of the Board or of its committees, the use of cameras, electric lighting equipment, flash bulbs, recording equipment, tape recorders, sound equipment, television cameras, and any other devices of a mechanical electronic, or similar nature used for transcribing or recording proceedings by auditory or visual means by members of the public, including accredited and other representatives of any news media whatsoever, be prohibited.”
3.9 The applicant, a radio station contended that the resolution so far as it prohibited the use of tape recorders, was beyond the powers of the Board. in response, the court stated:
“I consider it within the powers of the Board in the performance of its duty ... in the regulating of the mode of the conduct of its meetings to pass a resolution which deals with matters which may distract or interfere with the conduct of such meetings. It is not unreasonable that the Board should be of the opinion that recording or transcribing its meetings in the manner referred to might well interfere by distracting and impeding its members in their deliberations, to say nothing of members of the public who might come before the Board in the course of the Boards business. If it is reasonable that the Board should reach this decision, it is not for a Court to interfere.”20
3.10 As an example of a ruling made by a Royal Commissioner (pursuant to the inherent, rather than statutory power of a Royal Commission to control its own proceedings) for the purpose of regulating media reporting of the proceedings of a Royal Commission it is pertinent to refer to a memorandum issued to the media by the Chief Justice of New South Wales, the Hon Sir Laurence Street, who received a Royal Commission in May 1983, for the purpose of inquiring into “certain committal proceedings against K.E. Humphreys”. The memorandum is as follows:
“(1) Full and free access will be available to all media representatives throughout the Commission, subject to an occasion arising in which the Commission sits in camera. This access will permit the taking of notes or making of sketches (if done discreetly).
(2) By arrangement with the Sheriff at the Supreme Court, still photographs or television photographs may be taken of the courtroom and the precincts, provided that no persons are shown therein. This will of course, preclude televising of the proceedings themselves.
(3) Sound broadcasting and recording by tape-recorders will not be permitted.”21
Contempt
3.11 If a ruling such as this were breached by representatives of the news media for example, if a sound recorder were to be used, the breach could be dealt with by way of contempt. The Privy Council has recently held that in the absence of statutory provision to the contrary, the law of contempt only applies to courts and not to Royal Commissions.22 However, in New South Wales, the Royal Commissions Act 1923 provides that where a Royal Commissioner is a Judge of the Supreme Court the Royal Commissioner:
“shall have all such powers, rights, and privileges as are vested in the Supreme Court or in any Judge thereof in relation to any actions on trial in respect of... punishing persons guilty of contempt”.23
3.12 It is to be noted that this power only applies if the Chairman of the Commission or the sole Commissioner is a Judge of the Supreme Court. Consequently, where the sole Commissioner is not a judge of the Supreme Court, the Royal Commission has no power to punish any contempt that is committed. In Victoria, Royal Commissions do not have the power to punish acts of contempt, except where this is conferred by statute on a particular Commission. Hallett describes the Victorian situation in the following terms:
“As the law stands at present, Commissions and Boards are powerless to prevent disruption to their proceedings or interference with witnesses. Unless a person engages in conduct for which he could be arrested for a breach of the ordinary laws of the land, it appears police officers are also powerless. The person who wishes to be a nuisance is apparently free to do so.”24
3.13 In New South Wales section 18(1) of the Royal Commissions Act, 1923 clearly allows a Royal Commissioner who is a Judge of the Supreme Court to punish any act of contempt However, our discussion in Chapter 2 concerning contempt centred around the definition of contempt of court which as we have seem consists of acts or words which interfere or tend to interfere with the administration of justice. Given that Royal Commissions are not concerned with the administration of justice, it remains to be considered whether contempt takes on a different meaning when applied to the proceedings of Royal Commissions.
“The problem is, how to apply to a Royal Commission which is not concerned in the administration of justice at all doctrines designed solely to prevent interference with the administration of justice. Ex hypothesis there is nothing to be interfered with The very touchstone whereby the question of contempt or no contempt is to be judged has been withdrawn and some new criterion must be found. The solution must be that Parliament intended that the proceedings of the Commission are to be treated as themselves part of the general administration of justice, and that all acts which would be contempt in the case of a judicial proceeding shall if committed in relation to the Commission be contempt. Difficulties will arise in forcing the old doctrines to new uses, which I am not called upon to solve, but it is plain that there is an additional reason for great caution in applying the summary procedure for contempt to this new use.”25
3.14 In other words, any act that would, if the Royal Commission had been a court, have constituted contempt of court, is punishable as contempt of the Royal Commission. This is the approach adopted in England to contempt of certain tribunals. Section 1(2) (c) of the Tribunals of Inquiry (Evidence) Act 1921 (Eng.) provides:
“If any person... does any other thing which would, if the tribunal had been a court of law having power to commit for contempt have been contempt of that court: the chairman of the tribunal may certify the offence of that person under his hand to the High Court, or in Scotland the Court of Session and the court may thereupon inquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.”
Therefore, matters which will constitute contempt of a tribunal include publications likely to jeopardise the tribunals impartiality, publications likely to impede the tribunals ability to determine the truth scandalising the tribunal and acts which constitute contempt in the face of the tribunal.26
3.15 Although the New South Wales legislation contains only a general reference to the power of a Royal Commission to punish for contempt the Commonwealth legislation is much more specific in its application Section 60(1) of the Royal Commissions Act 1902 (Cth) provides a penalty of $200 or imprisonment for three months for:
“Any person who wilfully insults or disturbs a Royal Commission or interrupts the proceedings of a Royal Commission or uses any insulting language towards a Royal Commission, or by writing or speech uses words false and defamatory of a Royal Commission, or is in any manner guilty of any wilful contempt of a Royal Commission...”
3.16 Where the President Chairman or sole Commissioner of a Royal Commission established under Commonwealth legislation is a judge or justice of a specified court, it is provided by section 60(2) that:
“he shall in relation to any offence against sub-section (1) of this section committed in the face of the Commission, have all the powers of a justice of the High Court sitting in open Court in relation to a contempt committed in the face of the Court except that any punishment inflicted shall not exceed the punishment provided by sub-section (1) of this section”.
Where the Royal Commissioner is not a judge, or where the offence is not committed in the face of the Commission, prosecution for the offence may be undertaken by the Attorney-General in the Federal Court.27 it has been suggested that section 60(2) should have been drafted so as to render a contempt committed in the face of a Royal Commissioner who is a judge, also an offence to be prosecuted by the Attorney-General.
“It is possible that originally it was thought that because a Royal Commissioner is a judge, he is exercising judicial power, but quaere whether such a circumstance can alter the inquisitorial character of the Royal Commission concerned ... or render penalisation by such a Commission of a person committing a contempt in the face of the Commission a constitutional exercise of judicial power, not contravening the paramount provisions of s.71 of the Constitution. The validity of sub-s.(2) is, to say the least, open to grave doubt.”28
3.17 The Australian Press Council has recently called for the repeal of the reference to contempt in section 60, arguing that it is necessary to draw a clear distinction between a Royal Commission and a Court.29 The Council stated that the power of a court to punish for contempt is based on the dual belief that a court s own processes “should not be exposed to the possible influence of rival investigation or external criticism” and that courts should be protected “ from criticism or statements tending to lower public confidence in the judicial system as a whole”. The Council continued:
“However, Royal Commissions have no claim to either of these types of protection The appointment of a Commission is not and should not operate as a gag on discussion of the topic investigated. There is no trial to influence, and there is no reason why a Royal Commissioner should not be influenced by whatever comment the public or the Press may provide, if he finds it relevant to his task. There is no requirement that the sort of public confidence placed in the judiciary be automatically transferable to Royal Commissions.”30
Duration of Contempt Powers
3.18 Given that Royal Commissions in New South Wales possess the power to punish acts of contempt where the Chairman of the Commission or the sole Commissioner is a judge of the Supreme Court it needs to be considered whether this power extends beyond the life of the Commission. For example, a journalist may use a sound recorder to record the proceedings of a Royal Commission with the permission of the Commission subject to the condition that the recording not be broadcast. The Royal Commission then completes its work and is dissolved. if the journalist then broadcasts an excerpt from the sound recording does this constitute contempt?
3.19 It is clear that a statement made in reference to a court after it has given judgment and the proceedings are concluded can still constitute contempt of court.31 The law is not so clear with respect to Royal Commissions. It may be thought that once a Royal Commission is dissolved and is functus officio, there is consequently no body to be the object of contempt Yet in the Victorian case R. v. Arrowsmith,32 it was held that contempt had been committed by the publication of certain statements, even though the Royal Commission, which was the subject of the statements, was of limited duration.33 But the special legislation that was applicable to the Royal Commission in question provided that:
“the inquiry of the Commissioner shall be deemed to be a proceeding in the Supreme Court of the State of Victoria and the Commissioner shall be deemed to be acting as a Judge of the said Supreme Court.”34
Consequently, it was held that:
“The Supreme Court is then given as full and ample jurisdiction as it had with respect to any proceeding in the Court. it thus follows that any judge of the Court may deal with contempt of the Royal Commission.”35
3.20 It is to be noted that although the New South Wales legislation provides that a Royal Commissioner who is a Judge of the Supreme Court “shall have all such powers, rights and privileges as are vested in the Supreme Court or in any Judge thereof”, it does not provide that the Commission is an actual proceeding in the Supreme Court. The High Court considered the contempt power contained in the New South Wales Royal Commissions Act, 1923 in Ferraro v. Woodward.36 The court observed that an important point of distinction between a Royal Commission and the Supreme Court is that the term of a Commission is limited and stated that:
“a Commissioner who commits a person to prison must commit the contemnor for a fixed term or, if the term is not fixed, for a period which would not extend beyond the determination of the Commission.”37
3.21 The court noted that if a Royal Commissioner committed a contemnor to prison for a period which extended beyond the time of expiry of the Commission, then the Commissioner would have no right as Commissioner, to release the contemnor from imprisonment. This would seem to imply that if any act which would have been contempt while the Royal Commission was still in existence, is committed when the Royal Commission has been dissolved, there would be no power to punish this as an act of contempt. Therefore, the power to punish acts which constitute contempt of Royal Commissions in New South Wales is limited to the time in which the Commission is in existence.
Persons Authorised to Appear Before a Royal Commission
3.22 It is to be observed that our terms of reference require us to inquire into and report on whether the recording of the proceedings of Royal Commissions should be permitted by “persons granted leave to appear before a Royal Commission... and their legal representatives”. Of course, a Royal Commission may, pursuant to its inherent power to regulate its own proceedings, grant a request by any person present, including persons granted leave or authorised to appear, legal representatives, representatives of the news media and even members of the public, to use a sound recorder to record the proceedings. Similarly, a Royal Commission may, as we have seer make a ruling that such recorders not be used.
3.23 According to Hallett:
“Whilst there are no ‘parties’ involved in the proceedings of an inquiry in the same sense as there are in legal proceedings, there are often individuals or groups which have a special interest in the outcome of an inquiry.”38
This may be because “there is a likelihood that findings will be made which are adverse to a particular person or organization”.39 Section 7(2) of the New South Wales Royal Commissions Act, 1923 provides:
“Where it is shown to the satisfaction of the chairman, or of the sole commissioner, as the case may be, that any person is substantially and directly interested in any subject-matter of the inquiry, or that his conduct in relation to any such matter has been challenged to his detriment, the chairman or sole commissioner may authorise such person to appear at the inquiry, and may allow him to be represented by counsel or solicitor.”
3.24 The right of appearance carries with it the privilege, at the Commission’s discretion of legal representation and the opportunity, again at the Commission’s discretion to examine and cross-examine any witness called before the Commission.40 Permission to address the Commission when the giving of evidence has concluded, may also be granted.41 At the recent New South Wales Royal Commission of Inquiry into “certain committal proceedings against K.E. Humphreys”, three persons were granted general leave to appear and be legally represented. A further two persons and two organisations were granted limited leave to appear, be legally represented and to participate in aspects of the proceedings affecting them.42
3.25 It can be seen that one of two criteria must be satisfied in order for a person to be authorised to appear before a Royal Commission: either the person is substantially and directly interested in any subject matter of the Commission or the person’s conduct in relation to any subject matter of the Commission has been challenged to the detriment of that person. In contrast, the Commonwealth Royal Commissions Act 1902 refers to persons “authorized by a Commission to appear before it”43 but no criteria for determining when such authorisation may be given are specified in the legislation.44
3.26 In Victoria, the Evidence Act 1958, which is the only statutory provision in that State regulating Royal Commissions and Boards of inquiry, does not refer to persons being granted leave to appear. However, Sir Gregory Gowans, Q.C., after hearing applications for leave to appear at a Victorian Board of Inquiry stated:
“If there are no further applications, I think it would be appropriate to say something of the considerations which move me in granting appearances in this matter. The question of whether leave to appear should be granted is a discretionary matter for this Board. It is not to be accorded to everybody who merely feels interested in the subject matter. Representation should be confined to those who have a peculiar and material interest to protect or advance. I use the word ‘peculiar in the sense of an interest attaching to the individual and not merely shared by him or with a substantial section of the public. I use the word ‘material’ in the sense of describing something more than a self inspired or a merely temporary or passing interest.”45
Persons Appointed to Assist a Royal Commission
3.27 It is usual for a Royal Commission to have legal assistance for the duration of the inquiry. In Bretherton v. Kay & Winneke,46 Gillard J., stated with respect to a Victorian Board of Inquiry:
“... the practice is now well established of counsel appearing to assist a board. It is to the public benefit that in an inquiry of the serious character of this board counsel should be briefed to carry out the usual duty imposed upon an advocate.”47
The functions of counsel appointed to assist a Commission usually include the correlation and presentation of material the making of the opening and closing address and the examination of witnesses.48 Section 7(1) of the New South Wales Royal Commissions Act, 1923 states that any “counsel or solicitor appointed by the Crown to assist the commission may appear at the inquiry”. A barrister or solicitor so appointed may, with the leave of the Commission, examine or cross-examine any witness on any matter deemed relevant to the inquiry by the Commission.49
SPECIAL COMMISSIONS OF INQUIRY
3.28 Special Commissions of Inquiry are a very recent form of government inquiry, the enabling legislation being passed by the New South Wales Parliament in November 1983.50 Special Commissions of Inquiry are intended to operate separately from Royal Commissions. Although both types of Commission share many similarities, there are two main differences. First, it is the statutory duty of a Special Commission of Inquiry.
“to make a report or reports to the Governor as to whether there is or was any evidence or sufficient evidence warranting the prosecution of a specified person for a specified offence.”51
In other words, Special Commissions of Inquiry are restricted to inquiring into possible offences which may justify prosecution No such limitation is evident in the Royal Commissions Act 1923 and Royal Commissions can be employed for a wide range of purposes, including making recommendations to government on matters of Policy.52
3.29 The second main difference is that a Special Commission of Inquiry shall, in the course of a public hearing, only receive evidence that, in the opinion of the Commissioner, would be likely to be admitted into evidence in relevant criminal proceedings.53 However, in the case of a Royal Commission:
“There is no rule of law which obliges a Commission... to observe the rules of evidence applicable in courts of law and it is common for an inquiry to refer to the fact that the rules of evidence are not applicable to it.”54
In introducing the Special Commissions of Inquiry Bill into the Legislative Council the Hon J.R. Hallam on behalf of the Attorney General, the Hon D.P. Landa, stated:
“The fundamental principle of this bill is that public hearings in special commissions of inquiry will be governed by the rules of evidence applicable to criminal proceedings. The proceedings of a Royal Commission are not governed by the rules of evidence. That is not to say that there is anything wrong with Royal Commissions. They have their place and function where what is needed is a wide- ranging inquiry, a broad gathering of information. But there are matters of urgency that arise, from time to time, where what is needed is a clearly-defined inquiry, an expeditious inquiry. This bill is designed to meet that need. The rules of evidence have evolved over centuries in the practice of the courts. They have been tested by experience and represent the wisdom of generations of lawyers and Judges. They establish a delicate balance between the rights of those accused of wrongdoing and the right of the community to be protected from wrongdoing. In inquiries where serious allegations are being investigated, these rules should not be lightly discarded.
Proceedings in public before a special commission of inquiry will therefore, be governed by the rules of evidence. Proceedings will be held in public, although the commissioner will have discretion to close the commission when it is considered appropriate to do so ... The object of the legislation therefore, is to provide a form of inquiry which will be both expeditious and just, protecting the basic rights of citizens to be presumed innocent until proved to be guilty.”55
3.30 The other significant differences between Special Commissions of Inquiry and Royal Commissions are as follows.
- A Commission under the Special Commissions of Inquiry Act, 1983 may only be issued to a Judge or Queen’s Counsel.56 A Commission under the Royal Commissions Act, 1923 may be issued to “any person”, although certain coercive powers are available only if the Chairman of the Commission or the sole Commissioner is a Judge of the Supreme Court.57
- Special Commissions of Inquiry, like Royal Commissions, have inherent power to control their own practice and procedure. However, a Commission under the Special Commissions of Inquiry Act 1983 may contain directions 11 relating to the practice and procedure to be followed in the conduct of the Special Commission to which it relates”.58 No such limitation is evident in the Royal Commissions Act, 1923.
- A hearing before a Special Commission of Inquiry shall take place in public unless the Commissioner directs that the hearing take place in private, “by reason of the confidential nature of any evidence or matter or for any other reason.”59 No details are specified in the Royal Commissions Act 1923 for holding hearings in private, although as we have seen, it is well established that a Royal Commission has a discretion whether or not to exclude the public.60
3.31 The main similarities between Special Commissions of Inquiry and Royal Commissions are as follows.
- A Special Commission of Inquiry may authorise a person to appear before it and be legally represented where that person “is substantially and directly interested in any subject-matter of the inquiry, or that person’s conduct in relation to any such matter has been challenged to the person’s detriment.”61 This provision is identical to that contained in the Royal Commissions Act 1923.62
- Any counsel or solicitor appointed by the Crown to assist a Special Commission of Inquiry may appear before the Commission and may, with the leave of the Commissioner, examine or cross-examine any witness on any matter which the Commissioner deems relevant to the Special Commission.63 This provision is similar to that contained in the Royal Commissions Act, 1923.64
- Both Commissions have similar powers to inspect documents, compel witnesses to attend and to answer questions.65 A witness summoned to appear before a Special Commission of Inquiry or a Royal Commission is not excused from answering any question on the ground that the answer may incriminate the witness.66
- Both Commissions have statutory power to punish acts of contempt. For the purposes of a Special Commission it is specified that “the Commissioner shall have all such powers, rights and privileges as are vested in the Supreme Court or in any Judge thereof in or in relation to any proceedings, in respect of ... punishing persons guilty of contempt.67 In the case of a Special Commission the contempt power will not have effect unless in the relevant letters patent the Governor declares that the section shall apply to the Commission.68
3.32 The first Commission pursuant to the Special Commissions of Inquiry Act, 1983 was issued in November 1983 and the Hon R.F. Cross, a Judge of the Supreme Court of New South Wales, was appointed Commissioner to inquire into and report on certain allegations of the Hon I.M. Sinclair.69 We have been informed by the Secretary of the Special Commission that representatives of the news media were not permitted to use sound recorders to record the proceedings but were restricted to making hand-written notes.70 Sketching of the participants for later publication was permitted. A daily transcript was prepared by court reporters of the Court Reporting Branch of the Department of the Attorney General and of justice and was available for viewing by representatives of the news media and the public.71
SUMMARY
3.33 In this chapter we have examined the principles underlying the workings of Royal Commissions and Special Commissions of Inquiry and the law that regulates the powers exercised by these Commissions. In particular, we have discussed the manner in which Commissions may control their own proceedings and the application of contempt powers. We have also referred to the criteria upon which a person may be authorised to appear before a Royal Commission and a Special Commission of Inquiry as our terms of reference require us to report on the question whether these persons and their legal representatives should be permitted to record the proceedings of Commissions. In the following chapter we examine recent United Kingdom legislation which controls the use of sound recorders in courts and we evaluate that legislation as a possible precedent for New South Wales.
FOOTNOTES
1. See generally L Hallet, Royal Commissions and Boards of Inquiry (1982).
2. See for example, Royal Commissions Act 1902 (Cth) and Royal Commissions Act, 1923. For discussion of the history of Royal Commissions in New South Wales prior to the enactment of the Royal Commissions Act 1923, see Mr. Justice McClemens, “The Legal Position and Procedure Before a Royal Commission” (1961) 35 Australian Law Journal 271.
3. Note 1 above, p.28.
4. T.J. Cartwright, Royal Commissions and Departmental Committees in Britain (1975), p.32.
5. Id., p.34.
6. Id., P.37.
7. Id., p.38.
8. D. H. Borchardt, Checklist of Royal Commissions, Select Committees of Parliament and Boards of Inquiry, Commonwealth of Australia 1900-1960; New South Wales 1855-1960; Victoria 1856-1960; Tasmania 1856-1959. For research on the use of Royal Commissions in Queensland, see C.S. Clark, “The Royal Commissions of Queensland 1859-1901” (1962) 36 Australian Law Journal 131.
9. Borchardt, note 8 above.
10. Id.
11. Lockwood v. The Commonwealth (1954) 90 C.LR. 177, per Fullagher J., at p.181.
12. Royal Commissions Act 1902 (Cth.), s.6 D(5).
13. Id., s.6D(3).
14. Toohey v. Lewer [1979] 1 N.S.W.L.R. 673, at p.682.
15. Note 1 above, p.173.
16. Id., p.149. See also M.V. McInerney, “Procedural Aspects of a Royal Commission” (1951) 24 Australian Law Journal 386 where it is stated, “The mode of conducting the enquiry before the Commission seems to be left for each Commission to work out for itself.”
17. See also Commissions of Inquiry Act 1950 (Qld), s.17 which is expressed in similar terms.
18. R. V. Collins; ex parte ACTU-Solo Enterprises Pty. Ltd. (1976) 8 A.L.R. 691, at p.699.
19. Radio CHUM-1050 Ltd. v. Toronto Board of Education (1964) 43 D.L.R. (2d) 231.
20. Id., at p.234. The decision was upheld by the Ontario Court of Appeal: Radio CHUA4-1050 Ltd. v. Toronto Board of Education (1964) 44 D.L.R. (2d) 671.
21. The memorandum is reprinted in Appendix 2 of the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against KE. Humphreys, July 1983, pp.110-111.
22. Lutchmeeparsad Badty v. Director of Public Prosecutions [1983] 2 A.C. 297.
23. Royal Commissions Act, 1923, s.18(1).
24. Note 1 above, p.254.
25. R. v. Arrowsmith [1950] V.L.R, 78, at pp.85-86.
26. G. Borric and N. Lowe, The Law of Contempt (1973), pp.301-307.
27. See for example, The Queen v. O’Dea, 4 October 1983, Federal Court, Davies J.
28. “Contempt With Respect to a Commonwealth Royal Commission” (1983) 57 Australian Law Journal 550, at p.551.
29. The Australian Press Council, General Press Release No.57, September 1983.
30. Id., p.2. The Australian Law Reform Commission received a reference from the Commonwealth Attorney-General in April 1983 to inquire into and report on inter alia, “whether the laws and procedures relating to contempt of Tribunals and Commissions created by or under laws of the Commonwealth are adequate and appropriate”. See generally, Australian Law Reform Commission, Reform of Contempt Law, Issues Paper No.4, January 1984.
31. Gallagher v. Durack (1983) 57 A.L.J.R. 191, at p.193.
32. [1950] V.L.R. 78.
33. Id., at p.92.
34. Royal Commission (Communist Party) Act 1949 (Vic.), s.3(1)(a).
35. Note 32 above, at p.85.
36. (1978) 19 A.L.R. 188.
37. Id., at p. 190.
38. Note 1 above, p.194.
39. Ibid.
40. Royal Commissions Act 1923, s.7(3).
41. As occurred in the Royal Commission of Inquiry into Certain Committal Proceedings Against KE. Humphreys. See Report, Appendix 3, p.114.
42. Id., Appendix 2, pp. 109-110.
43. Royal Commissions Act 1902 (Cth), s.6FA.
44. A different provision again is found in section 4A of the New Zealand Commissions of Inquiry Act 1908 which states:
“4A. Persons entitled to be heard -
(1) Any person shall, if he is a party to the inquiry or satisfies the Commission that he has an interest in the inquiry apart from any interest in common with the public, be entitled to appear and be heard at the inquiry.
(2) Any person who satisfies the Commission that any evidence given before it may adversely affect his interests shall be given an opportunity during the inquiry to be heard in respect of the matter to which the evidence relates.
(3) Every person entitled, or given an opportunity, to be heard under this section may appear in person or by his counsel or agent.”
See Re Erebus Royal Commission; Air New Zealand v. Mahon (No.2) [1981] 1 N.Z.L R. 618, per Woodhouse P. and McMullin J., at p.628.
45. Board of Inquiry into Housing Commission Land Purchases 1977, Transcript of Proceedings, p.7, quoted in Hallet, note 1 above, p.197.
46. [1971] V.R. 111.
47. Id., at p.123.
48. Note 1 above, Chapter 12.
49. Note 23-above, s.7(i). In the Royal Commission of Inquiry into Certain Committal Proceedings Against K.E. Humphreys, two counsel and a solicitor of the State Crown Office were appointed to assist the Commission (Report, Appendix 2, p.109). The procedure adopted by the Commission was for evidence to be elicited from witnesses by oral questioning by Counsel assisting the Commission. Legal representatives of persons authorised to appear were then permitted to question each witness after which Counsel assisting the Commission questioned the witness further (Report, Appendix 3, p.113).
50. Special Commissions of Inquiry Act, 1983.
51. Id., s.10(1).
52. Note 1 above, Chapter 2.
53. Note 50 above, s.9.
54. Note 1 above, p.158.
55. New South Wales Parliamentary Debates (Hansard), Legislative Council, 3 November 1983, p.2400. The Opposition moved an unsuccessful amendment in committee that “A Commissioner shall not be bound to observe the rules of procedure and evidence applicable to proceedings before a court of law” (p.2441).
56. Note 50 above, s.4(2). “Judge” is defined to mean a Judge of the Supreme Court, a judicial member of the Industrial Commission, a Judge of the Land and Environment Court, a judge of the District Court or a member of the Workers’ Compensation Commission.
57. Royal Commissions Act, 1923, ss.15-18.
58. Note 50 above, s.5(1).
59. Id., s.7(2).
60. Para. 3.6.
61. Note 50 above, s.12(2). For discussion of s.12(2) and its application to the first Special Commission of Inquiry, see Report of the Special Commission of Inquiry into Certain Allegations by the Right Honourable Jan McCahon Sinclair, January 1984, Appendix 3.
62. Note 57 above, s.7(2): see paras.3.22-3.26.
63. Note 50 above, s.12(1), (2).
64. Note 57 above, s.7(1), (3): see para.3.27.
65. Id., ss.11 and 12; note 50 above, ss.17 and 18.
66. Note 57 above; s.17(1) and note 50 above, s.23(1). In both cases the sections will not apply to a particular Royal Commission or Special Commission of Inquiry unless this is specified in letters patent from the Governor. For discussion of the abrogation of the privilege against self-incrimination in the Royal Commissions Act 1902 (Cth.) see Sorby v. Commonwealth of Australia (1983) 46 A.L.R 237.
67. Note 50 above, s,24; note 57 above, s.18(1). See also paras.3.11-3.21.
68. Note 50 above, s.21(1).
69. Note 61 above. The second Special Commission of Inquiry has now concluded: see Report of the Special Commission of Inquiry into Certain Allegations by Mr. R Bottom, February 1984.
70. Personal communication with Mr. S. Cole, Secretary, Special Commission of Inquiry, 9 December 1983.
71. Ibid.
